What is retaliation or reprisal, and how do I prove it?
If your employer takes action to punish you in any way for having filed, testified, or opposed a discriminatory practice in your workplace, its actions constitute illegal retaliation or reprisal. You are protected from discrimination under the WFEL even if your employer punishes you merely because it believes that you intended to take any of the actions listed above.
To prove that you were retaliated against for your opposition to discrimination, you must show that:
For what reasons can I be fired?
Unless your employment contract says otherwise, you are probably an "at-will" employee, which means that you can be fired for any reason except for reasons prohibited by Wisconsin law. Nevertheless, you cannot be fired for your opposition to what you believe is discrimination in your workplace.
What is "protected conduct"?
All legitimate actions you take in opposition to discriminatory practices at your place of work are protected. That means if you file a claim, testify for others, or simply report activities that you reasonably believe are discriminatory, you are protected under Wisconsin law.
How do I show that my legally protected conduct led to my discharge?
You must first show that your employer knew about your opposition to what you reasonably believed was discriminatory practices or policies. You must then show that your employer took some adverse action against you as a result.
Did my employer retaliate against me by taking an "adverse action"?
If your employer knew that you opposed discriminatory policies or practices and took any "adverse action" because of your stance, you have suffered "retaliation" and can recover under Wisconsin law. For example, if your employer knew that you had or were about to file a sex discrimination complaint with the Equal Rights Division and fired you, this would constitute retaliation.
Must I show that my employer knew about my "protected conduct"?
Yes, you must prove that your employer knew, or believed, that you had engaged in protected conduct to show that any adverse action you suffered was in retaliation for your protected conduct.
I've just received a warning from my employer, and I suspect I will be fired soon. What should I do?
If you receive a warning from your employer, your first instinct may be to panic or even become angry. Depending on the circumstances, you should remain calm, especially since your employer may continue monitoring your work. Generally, you should begin gathering information: clarify the warning if necessary by asking your employer, get a copy of company policy on warnings/dismissals to ensure that your employer is following its own policies, talk to trusted co-workers to see if they have any insights into what they have observed in the workplace, keep track of the date/time of interactions with your employer as well as any documents that may be relevant, and, most importantly, consider whether the warning may have something to do with sex discrimination or complaining about sex discrimination. Ask yourself if your employer's warning comes on the heels of your confronting the company about sex discrimination. If so, there may be more to the warning than meets the eye.
What can I do to protect any legal rights I might have before leaving my job?
The easiest way to protect your legal rights before leaving your job is to document everything. Even if you initially feel as if your firing was not retaliatory or discriminatory, cover all of your bases by asking for the termination letter in writing, and saving all written warning letters. To aid in any potential claims you may have against your employer, document the dates of any decisions or actions affecting your employment, including salary or benefit increases/decreases, recommendations, and reprimands.
I am being forced to leave my job. But before I go, my employer requires that I sign a document promising not to sue. Is that legal?
It is not illegal for your employer to get you to sign a waiver of your right to sue as part of a severance agreement. Be conscious that you are taking a risk if you sign a waiver, as they are generally enforceable. If you have any doubts about your employer's reasons for firing you, especially if you think your employer may be retaliating or discriminating against you, you should consult with an attorney before signing anything.
What could my employer do to deny my allegations, and how do I respond to their denials?
When your case goes before the administrative law judge, you will have the initial burden of showing the judge some evidence that you were discriminated against by your employer. If the judge is satisfied that you have met this burden, your employer must then give legitimate, nondiscriminatory reasons for his or her actions. If your employer can give a sufficient reason for his or her actions, you must respond by proving that, more likely than not, the reasons offered by your employer were not the true reasons for his or her actions, but instead were only a pretext for discrimination. If you meet this final burden you have shown true discrimination.
Does it matter when the discrimination occurred?
Yes, you must file a claim with the Wisconsin Equal Rights Division or the EEOC within three hundred (300) days of the discriminatory action.
What What options do I have if I my employer has fewer than 15 employees?
The WFEA applies to all employers regardless of the number of employees.
If I prove my retaliation claim, what kind of remedies am I entitled to?
You may be entitled to injunctive or monetary relief. However, remedies vary from case to case. See remedies.
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